(COURT OF APPEAL)*

ZEINAB EL MUSBAH v. EL MALKA OSMAN AND OTHERS

AC-REV-578-1965

 Principles

·  Pre.ernption—Right of pre-emption—Right arises only when sale is corn pleted— ivo existence of such right prior to registration of sale

A right to pre-emption arises only after sale is completed. Therefore a person cannot renounce such right prior to registration of sale.

Judgment

El Fatih Awouda J. October 16, 1966: —Applicant is the registered owner of one ud in share No. 1, one ud in share No. 2, and 2 1/2 uds in share No. 3, Sakia No. 72B Bawga, Berber District, held in undivided shares. Respondent 2 was a co-owner in the same sakia. He sold his share amounting to 2 uds in share No. 2, to respondent 1, for £S.27.500m/ms, and the sale was registered on March 13, 1963. On June 19, 1963, applicant petitioned Berber District Court asking to exercise her right of pre-emption in respect of those 2 uds. Pre-emption notices were accordingly served on respondents.

The learned District Judge dismissed applicant’s claim on the ground that prior to registration of the sale applicant renounced her right to pre-empt and there was sufficient evidence to that effect.

The learned Province Judge summarily dismissed an application for revision to him from that order.

I think that both the learned Province Judge and the District Judge were wrong. A right to pre-empt arises only on sale of the land and not at any time before it. If a would-be pre-emptor renounces the right to pre-ernpt whether verbally or by conduct before the sale takes place he is not debarred from exercising the right to claim pre-emption when the sale is completed.

The Pre-emption Ordinance, s. 16, reads:

- “A person entitled to a right to pre-emption loses such right in any of the following cases:

(C) if within fifteen days from the time when he had cognisance of the sale he has not taken the steps mentioned in section ii to claim pre-emption.”

It is true that applicant has served notice of her claim on the vendor and purchaser as required by Pre-emption Ordinance, s. ii (a). But did she take that step within fifteen days from the time when she had cog nisance of the sale? This is an important issue on which evidence should have been heard. In order to decide that issue it is necessary to ascertain the time on which she took cognisance of the sale.

In the result this application is allowed in part. The decree of the learned District Judge is hereby set aside and the case is sent back for framing and trying the issue above referred to.

No order as to costs.

Osman El Tayeb J. October 16, 1966: —I agree.